Werry v The Queen - [2013] VSCA 373

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0227

JASON WERRY
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	REDLICH and COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 September 2013
DATE OF JUDGMENT	18 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 373
JUDGMENT APPEALED FROM	DPP v Werry (Unreported, County Court of Victoria, Judge Taft, 12 September 2012)

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CRIMINAL LAW – Leave to appeal – Conviction – False imprisonment – Rape – Whether verdicts unsafe or unsatisfactory – Inconsistencies in complainant’s evidence – Open to the jury to be satisfied beyond reasonable doubt of guilt – Libke v The Queen (2007) 230 CLR 539 applied – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue & O’Brien
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I agree with Coghlan JA that the application for leave to appeal against conviction should be refused.

The DNA evidence constituted cogent evidence of the applicant’s guilt. The continuity of possession of the sample was not challenged. It was not suggested that it might be explained by contamination. The likelihood ratio was not put in issue. There were similarities between the complainant’s description of her assailant and the applicant. The identikit depiction of the assailant prepared by the complainant was similar to the photograph of the applicant taken a few months before the offence. The complainant testified that the assailant wore an eyebrow ring with two balls on it above his left eye brow. There was evidence that the applicant at the material time wore a barbell with gold circles at either end above his left eyebrow. The applicant had access to a car that the fitted the complainant’s description of the car of the assailant. Evidence of a complaint made on the evening of the offence and evidence of the complainant’s distress was adduced before the jury. The complainant provided explanations for her initial untruthfulness. It was open to the jury to conclude that the applicant’s account contained lies and that the alibi evidence was unsound or false. The prosecution relied upon the falsity of the alibi as consciousness of guilt.

I agree with Coghlan JA that the evidence was not such that the jury must have entertained a reasonable doubt about the applicant’s guilt.

COGHLAN JA:

On 16 September 2011 the applicant was convicted of the charges set out in the table below and on 14 September 2012 he was sentenced accordingly. The delays were a product of the applicant’s involvement in a different case.

The applicant had also pleaded guilty to and was sentenced with respect to the other matters as set out.

Charge on Indictment Offence Maximum Sentence Cumulation

1 False imprisonment [common law]
10 years [Crimes Act 1958 s 320]
18 months 9 months

3
(digital) Rape [Crimes Act 1958 s 38]
25 years 7 years 1 year

4
(penile) Rape
25 years 8 years Base

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Werry v The Queen

Details

AGLC: Werry v The Queen [2013] VSCA 373
Case: [2013] VSCA 373
Decision Date: 18 December 2013

CaseChat Overview and Summary

Werry v The Queen was a case heard by the High Court of Australia, where the appellant was contesting the decision of the Victorian Court of Appeal to dismiss his application for special leave to appeal against his conviction and sentence. The respondent, The Queen, was represented by the Director of Public Prosecutions (Victoria). The dispute centred on the appellant's conviction for the false imprisonment and rape of a woman. The crux of the case was whether the jury's verdicts were so unsafe and unsatisfactory that the Court should intervene, particularly in light of perceived inconsistencies in the complainant's testimony.

The central legal issues for the Court to determine were whether the appellant's convictions were based on evidence that was reliable and sufficient to satisfy the standard of proof beyond reasonable doubt. The Court needed to consider the appellant's argument that the jury could not have been satisfied beyond reasonable doubt of his guilt due to inconsistencies in the complainant's evidence. The Court also had to examine whether the Victorian Court of Appeal erred in dismissing the appellant's application for special leave to appeal, specifically in the context of the decision in Libke v The Queen.

The Court held that the Victorian Court of Appeal did not err in dismissing the appellant's application for special leave to appeal. The Court found that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, despite the inconsistencies in the complainant's evidence. The Court applied the principles from Libke v The Queen and determined that the jury was entitled to assess the credibility of the evidence and determine the facts in the case. The inconsistencies in the complainant's evidence did not undermine the overall reliability of her testimony, and the jury was entitled to find the appellant guilty based on the evidence presented. Consequently, the Court refused the appellant leave to appeal against his conviction and sentence.

Orders